ANJANI KUMAR, J. - (1.) BY means of present writ petition under Article 226 of the Constitution of India, employer -petitioner M/s. Dhampur Sugar Mills Ltd. have challenged the reference made by the State of U.P. dated 14 -7 -1995, Annexure -3 to the writ petition. Aggrieved by the said reference made by the State of U.P., employer filed present writ petition before this Court in which this Court vide its order dated 10 -11 -1995 has stayed further proceedings pursuance to the aforesaid reference, thus the proceedings before the Labour Court were stayed.
(2.) HEARD learned Counsel for the parties. A point has been taken that since there is a reference, of course a case was registered by the Labour Court being Adjudication Case No. 189 of 1975 to the effect Whether the termination of the services of workman Hanshraj Watawali, son of Sri Ramlal Verma, Workshop Supervisor by the employer w.e.f. 13 -9 -1974 was justified or not,if not, to what relief the workman concerned is entitled? From the averment made in the writ petition, it is abundantly clear that the dispute was referred in the year 1975 to the Presiding Officer, Labour Court, Meerut and the same was numbered as adjudication case No. 135 of 1978. It appears that during the pendency of the aforesaid reference, the question has arisen as to whether the then Presiding Officer of the Labour Court, namely, Sri M. Ahsan was competent to hear the reference made by the State Government or not? In this regard, it is submitted that certain employers have filed writ petitions before this Court, with which this case has no concerned, with regard to eligibility of certain person, like Sri M. Ahsan as Presiding Officer of the Labour Court and this Court has stayed further proceedings in those matters. In the aforesaid matter including several other cases Sri M. Ahsan passed the following order on 9th June, 1982, which reads thus : In view of the position arising above, I do not find myself legally competent to try the case. The reference order consequent upon retirement of Shri Ram Chandra has become infructuous. The case may be consigned to record room. Let a copy of this order be submitted to the Sate Government. Date 9 -6 -1982. Sd/ - M. Ahsan P.O. Labour Court The writ petitions, referred to above, which were filed before this Court challenging the eligibility of Presiding Officer of the Labour Court, were ultimately dismissed. Thereafter on the application filed by the workman concerned before the State Government, the State Government has made a reference of the same dispute again, which was held to have become infructuous by Labour Court vide its order dated 9 -6 -1982, the present reference made by the State Government on 14 -7 -1995. It is this reference, which has been answered in favour of the workman by the Labour Court, which is numbered as adjudication case No. 70 of 1995 by the impugned award. It is this award, which is under challenge. Learned Counsel for the employer -petitioner argued that the State Government was not competent to make the reference as the alleged termination of the workman was of the year 1975 and sufficiently long time has been passed, therefore State Government could not and should not have made the reference. It is this point which found favour at the time of admission of the present writ petition when this Court was pleased to pass an interim order, referred to above. Learned Counsel for the employer has advanced argument that the State Government should not have referred the matter to the Labour Court, particularly in view of the fact that on two earlier occasinos it had made the reference, which remained unanswered, now therefore the State Government cannot make the reference in the year 1995 of a dispute which has already been referred to by the State Government in the year 1978. The another stand taken by the employer that according to the allegation of the workman his services were illegally terminated in the year 1975, whereas the reference has been made on 14 -7 -1995 on the application of the workman, therefore apart from that the reference is made after undue delay and therefore liable to be rejected on this ground. Learned Counsel for the employer has reiterated the arguments which have been advanced before the Labour Court and has cited decisions that the reference made by the State Government was barred by time in view of the decisions of Hon'ble Supreme Court reported in AIR 1970 S.C. 1205, Western India Match Co. Ltd. v. Workers Union, AIR 1959 SC 1217, Salimar Works Ltd. v. Workmen. These two decisions and another decision relied upon by the learned Counsel for the employer reported in 2000 (2) SCC 455, Nedungadi Bank Ltd. v. K.P. Madhavankutty, has been considered in the recent Supreme Court decision reported in 2001 (6) SCC 222; 2001(2) LBESR 798 (SC), Sapan Kumar Pandit v. U.P. Electricity Board and another, in which the apex Court has observed in paras 9 and 10, which read as follows : (9) Hence the real test, is, was the industrial dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Government's power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period, which elapsed since the inception of the dispute. That apart, a decision of the Government in this regard, cannot be listed (sic) on the possibility of what another party would think, whether any dispute existed or not. The section indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority, which can form such an opinion is the Government. If the Government decides to make the reference, there is a presumption that in the opinion of the Government, there existed such a dispute. (10) In considering the factual position whether the dispute did exist on the date of reference the Government could take into account factors, inter alia, such as the subsistence of conciliation proceedings. It is of no consequence that conciliation proceedings were commenced after a long period. But such conciliation proceedings are evidence of the existence of the industrial dispute. It is an admitted fact that on the date of reference in this case the conciliation proceedings were not concluded. If so, it cannot be said that the dispute did not exist on that day.
(3.) IN view of the aforesaid, it is clear that once a reference is made, it is presumed that the State Government is satisfied that industrial dispute is still subsisting, therefore the Labour Court cannot go behind the reference. Apart from above, in a recent decision of Hon'ble Supreme Court, it has been held that the discretion of the State Government that the dispute is still exists, cannot be questioned by the Labour Court and the Labour Court cannot go behind the reference.;